O'Kane v Georgiou

NCAT Appeal Panel|2021-08-13

Background

This appeal was filed on 10 June 2021 following a decision made on 27 May 2021 in the Consumer and Commercial Division of the Tribunal. The Appellants are tenants under a residential tenancy agreement and the Respondents are the landlords. The Tribunal was exercising its jurisdiction under the Residential Tenancies Act 2010 NSW (the RT Act). The orders under appeal were to the following effect: 1. The residential tenancy agreement is terminated in accordance with s 87 of the RT Act. 2. The Tribunal is satisfied in accordance with s 89(5) that the Appellants have frequently failed to pay rent. 3. The residential tenancy agreement is terminated immediately and possession is to be given to the Respondents on the date of termination. 4. The order for possession is suspended until 10 June 2021. 5. The Appellants shall pay to the Respondents a daily occupation fee at the rate of $75 per day from 26 May 2021 until the date vacant possession is given. 6. Within 60 days of the date for possession, the Respondents may request the relisting of the application to determine the amount of the occupation fee owing. 7. The Appellants are to pay the Respondents the sum of $450 immediately in respect of rent from 20 May 2021 to 25 May 2021.
We will refer to the decision under appeal as the Decision, and in order to understand the basis for the appeal summarise below the Tribunal's reasons as follows: 1. The Respondent (ie the landlords) relied on evidence filed on 11 March 2021 and an updated ledger emailed to the Tribunal and to one of the Appellants during the hearing [9]. We note the apparent typographical error in referring to the landlords as the Respondent. The Appellants confirmed receipt of the Respondents' (ie the landlords') evidence and that they had not submitted any documentary evidence [10]. 2. The Respondents relied on a Notice of Termination dated 25 January 2021. It specified 8 February 2021 as the date for termination and vacant possession [14]. 3. The ledger provided by the Respondents during the hearing (being a statement up to 25 May 2021) recorded that the Appellants' rent as at 25 January 2021 had been paid to 21 December 2020 with a part payment in credit of $199.81 [15]. 4. The Appellants contended that the ledger was not correct and that payments had occurred which are not recorded on the ledger. No documentation was provided in support of those contentions [16]. 5. The Appellants contended that they had made a payment of $550 to the prior agent (ie. the agent who managed the property until 1 January 2020) which is not recorded on the ledger, but the Appellants could not provide any evidence for such payment [18]. 6. The Tribunal found that in the absence of any reliable or probative evidence to the contrary, the ledgers submitted by the Respondents to be accurate accounts of the Appellants' rental payments to date. The Tribunal found that at the time the termination notice was given the Appellants were more than 14 days in arrears. Accordingly, the Tribunal found that the Appellants were in breach of their obligations to pay rent [20]. 7. The Tribunal recorded the Respondents' contention that the Appellants continued to be in arrears as at the date of the hearing with their rent being paid up until 17 May 2021 (plus a part payment of $156.96). The Tribunal found that the rent was effectively paid up to and including 19 May 2021, meaning that the Appellants were "around $450 in arrears" [21]. 8. The Tribunal recorded the Appellants' submission that they were not in arrears and believed they were ahead in their payments [23]. 9. The Tribunal referred to the ledger provided during the course of the hearing and found that it indicated that rent in the sum of $550 had been paid on 7 and 14 May 2021 [24]. 10. The Tribunal considered "the recent historical payments" made by the Appellants and found that the Appellants were between 6 to 10 days in arrears throughout January 2021, that there were payments made in February 2021 and that the Appellants remained "paid in advance until 11 March 2021". The Tribunal found that on 19 March the Appellants were paid to 18 March and on 29 March paid to that date. In April and May some payments were made in advance and some to the date of payment and not beyond [25]. 11. The Tribunal found that the Appellants had frequently, since at least January 2021, not paid rent in advance and that the rental agreement requires that rent be paid in advance. The Tribunal then found the Appellants to be "unreliable in their payments" and found that they have "frequently failed to pay rent in accordance with their rental agreement since at least January 2021" [26]. 12. The Tribunal found that although there were payments recently made prior to the hearing, the Appellants continued to be in arrears. The Tribunal was satisfied that the Appellants had frequently failed to pay rent in accordance with the tenancy agreement [27]. 13. The Tribunal also stated that it was satisfied that the breach by the Appellants was sufficient in all the circumstances to justify termination [28].

Notice of Appeal

The Appellants' Notice of Appeal contains three grounds which may be summarised as follows:

Ground 1 1. The Respondents filed a rental ledger at the hearing on 27 May 2021 and the rental ledger filed and served prior to that date was not up-to-date. As a consequence, the Tribunal failed to afford the Appellants procedural fairness by failing to give them an appropriate opportunity to read through and understand the rental ledger. A correct reading of the rental ledger shows that the Appellants were not in arrears and were actually in advance in their rent.

Ground 2 1. The Tribunal erred in finding that the Appellants were in arrears and had frequently failed to pay rent. The ledger to 25 May 2021 indicates that the Appellants were in arrears in the sum of $446.05 but, when the amounts paid, as shown on the ledger, are added up they do in fact add up to more than the amount owed by the Appellants. The Tribunal erred in in its interpretation of the rental ledger and in coming to the findings that the Appellants were in rent arrears, and that they had frequently failed to pay rent.

Ground 3 (numbered 4 in the Notice of appeal) 1. The Tribunal made a finding that the landlord had financial obligations which can only be properly met if regular rental payments are made in accordance with the tenancy agreement. This finding was based on a submission of the agent with no supporting documentary evidence. As such, the finding was made in the absence of any evidence.

Ground 4 1. The Appellants seek leave on the basis that they may have suffered a miscarriage of justice because the Decision was not fair and equitable and against the weight of evidence. There was no evidence to establish the Respondents' financial obligations, the only alleged rental arrears totalled $450, the Appellants had begun making extra payments towards the alleged arrears and the Appellants had significant personal circumstances concerning three minor children and the death of another.

The Respondents' Reply to Appeal may be summarised as follows:

Ground 1 1. The ledger provided at the hearing made no difference to the rental arrears history since commencement of the tenancy on 23 September 2019. The Appellants have constantly been in arrears and prior concerns about the inaccuracy of rental ledgers have been addressed, including by a meeting with the Appellants on 29 May 2020.

Ground 2 1. The Appellants failed to provide evidence of any payments of rent which have not been recorded on the ledger.

Ground 4 1. The Respondents have a mortgage and other bills to pay such as rates, water and insurance. The Respondents assert that they do not have to supply evidence in relation to any hardships as the "hearing is based solely on tenancy arrears". 2. The Respondents assert that the appeal was lodged out of time.

The Respondents' contention that the appeal was lodged out of time may be dealt with briefly. The appeal was lodged within fourteen days after the Decision and was therefore made within time (Civil and Administrative Tribunal Rules 2014, r 25(4)(b)).

Ground 1

The Appellants contend that they suffered procedural unfairness at the hearing on 27 May 2021. The hearing was conducted by telephone and Mrs O'Kane appeared for herself and her husband. Prior to the hearing the Respondents had filed and served documentation in support of their application, but not an up-to-date rental ledger. An up-to-date rental ledger was emailed to the Tribunal and to Mrs O'Kane during the course of the hearing. In addition, during the course of the hearing, the Tribunal was informed that on the same day the Appellants had made a further rental payment of $550. Mrs O'Kane was denied an appropriate opportunity to read through and understand the rental ledger. This is a material error, in the Appellants' submission, because a correct reading of the ledger showed that the Appellants were not in arrears but were actually in advance of their rent. Between 31 December 2019 and 27 May 2021 the Appellants had paid sufficient rent such that they were not in arrears.
The Respondents have produced a more up-to-date ledger for the purposes of this appeal and it demonstrates that an entry in the earlier ledger was made in error. That error concerned the reversal of a payment of $550 made in early April 2021, the reversal having been made on 26 April 2021, which the Respondents have now corrected. In other words, the Tribunal failed to have before it evidence as to the correct amount of arrears in the ledger by reason of the payment made on the day of the hearing and the further payment reversed on the earlier ledger but since recredited on the subsequent ledger.

Ground 2

The finding of the Tribunal that the rent arrears was in the amount of $450 and that the Appellants had frequently failed to pay rent was either illogical or unreasonable and was so unreasonable that no decision maker could come to it (relying upon Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 at [28]). The Appellants' submissions make reference to entries on the Respondents' rental ledger. The submissions state that the ledger is in some respects "clearly inaccurate" and refers to a payment of $1,600 made on 12 January 2020. We will not dwell on that submission because we regard it as misconceived. The description of payments made in the ledger appear to be clear on their own terms. For example, take the Appellants' reference to the payment of $1,600 made on 12 January 2020: it is clear that the ledger is recording that that payment constituted a payment for the period from 30 December 2019 to 20 January 2020 and that immediately prior to that payment the Appellants were 11 days in arrears.
The Appellants take issue with the findings of fact recorded in paragraph 21 of the Decision to the effect that as at the hearing date the Appellants had paid rent up until 17 May 2021 (with a part payment of $153.96 in credit). The Tribunal found that that effectively meant that the Appellants had paid until 19 May 2021. The Appellants submit that these findings are inconsistent with a calculation made as to the aggregate rent due compared with the aggregate rent paid over the period from 20 January 2020 to 27 May 2021.
The Appellants dispute the efficacy of the Notice of Termination upon the basis that when it was issued on 25 January 2021 two payments of $550 each had not been taken into account, namely payments on 16 September 2020 and 20 November 2020. The only evidence for these payments is fresh evidence which the Appellants sought to tender in support of their appeal. The fresh evidence consisted of a number of documents (marked Exhibit A1 and A2) and largely consisted of bank statements of the Appellants and their aunt and mother.

Ground 3

The Appellants submitted that the evidence referred to with respect to the other submissions establishes that the finding that there were arrears of $450 is erroneous. They submitted that, when considering whether the breach was sufficient to justify termination, the Tribunal took into account that the Respondents had financial obligations. That finding was based on a submission from the agent unsupported by documentary evidence.

Ground 4

The Appellants submit, relying upon the decision in Collins v Urban [2014] NSWCATAP 17, that the Appellants have suffered a denial of procedural fairness such that the Decision is not fair and equitable. They were not provided with any reasonable opportunity to identify payments that they allegedly made and which were not recorded on the rental ledger. The Respondents concede that a reversal on the ledger made on 26 April 2021 was in error and have since reversed that reversal. In particular, the Appellants submit that they have suffered a substantial miscarriage of justice because there was a significant possibility or a chance which was fairly open that a different and more favourable result would have been achieved for them had the relevant facts been before the member or if the fresh evidence had been before the member.
The particular factual error the Appellants rely upon is the state of the rental payments as at the date of the hearing. The Tribunal should have had before it evidence to the effect that the reversal of 26 April 2021 was in error and should also have taken into account the payment of $550 made on the day of the hearing. These two amounts, totalling $1,100, would have meant that the Appellants were $664 in advance.
In addition the Appellants submit that other payments were not credited to the ledger or in some cases misappropriated by crediting a payment to pay for water. Taking into account all the evidence, including evidence filed in the appeal the Appellants had, at the date of the hearing, paid to early June 2021.

Respondents' Submissions

The Respondents accepted at the hearing that the Appellants are currently paid up until 16 August 2021 and that there was an error made on 26 April 2021 reversing an earlier payment. A more recent ledger has, as recorded earlier in these reasons, corrected that position. The Respondents concede that the Tribunal's finding that there was $450 in arrears as at 27 May 2021 was in error. As at the date of the hearing the Appellants had paid to 28 May 2021 (taking into account the payment made on the day of the hearing and also recognising the incorrect reversal).

Ground 1

The Respondents dispute that the Appellants were not afforded procedural fairness. Prior to the hearing the Appellants were given ample opportunity to provide evidence in support of the contentions that earlier payments had not been taken into account.

Grounds 2, 3 and 4

The Respondents submit that they have, through their agent, reviewed the ledgers and have found no evidence of any error other than the reversal earlier referred to concerning the entry made on 26 April 2021. The new evidence which the Appellants wish the Appeal Panel to consider does not show that withdrawals from bank accounts resulted in payments being made to the Respondents' agents. The Respondents submit that there was ample evidence to the effect that the Appellants had periodically been in breach of their obligations to pay rent weekly in advance. Indeed, in May 2020, the Appellants entered into a repayment plan with a view to bringing arrears up-to-date and there were text messages from Mr O'Kane constituting admissions as to arrears.

Appellants' Submissions in Reply

The Appellants dispute the Respondents' contention that on the basis of the ledgers being correct (a matter disputed by the Appellants), other than in respect of the conceded incorrect reversal, the rent was paid to 23rd May. Rather the Appellants submit rent was paid to 3rd June. That is calculated on the basis that the ledger showed rent paid to 19th May and there needs to be credit given for the incorrect reversal ($550) and the payment made on the day of the hearing (also $550). That is said to take the period of paid rent to 3rd June (because in effect 14 days of rent was not considered).

Consideration

Appeals from decisions made in the Consumer and Commercial Division of the Tribunal are regulated by s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and by clause 12 schedule 4 of the NCAT Act. In essence this means that there is an appeal as of right on any question of law and with leave on the grounds stipulated in clause 12.
We note that the Respondents submit that the Appellants should not have been given an opportunity to appeal as it is a mere delaying strategy. That submission is misconceived in the sense that s 80 gives a right to appeal on a question of law and the effect of clause 12 is that the Tribunal must consider whether to give leave to appeal if one or more of the matters set out in clause 12 are established and if the Tribunal is satisfied that the Appellants may have suffered a substantial miscarriage of justice. Clause 12 provides as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because-- (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
This appeal raises both questions of law and clause 12 grounds. An allegation that there has been a denial of procedural fairness gives rise to a question of law. Similarly, an allegation that there was no evidence to support a finding of fact also gives rise to a question of law: see John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13].
On 29 March 2021, the application of the Respondents came before the Tribunal, at which time orders were made for the further conduct of the proceedings. One order was to the effect that the Appellants were to provide to the Respondents all documents on which the Appellants intended to rely by 8 April 2021. This was made presumably because the Respondents had already filed and served their documents (see [9] of the Decision in which the Tribunal records that the Respondents had filed a folder of evidence on 11 March 2021). The Tribunal further ordered that the Respondents were to provide to the Appellants and to the Tribunal an updated ledger three days prior to the hearing. That would have meant that such ledger should have been provided no later than 24 May 2021. The Respondents did not comply. As a result the Tribunal had before it no up-to-date ledger at the hearing on 27 May 2021 until part way through the hearing. The Respondents' agent forwarded by email a copy of the ledger to 25 May 2021 to the Tribunal and to Mrs O'Kane.

Ground 1 - procedural fairness

The question arises as to whether the Appellants have suffered any procedural unfairness as a result of the Tribunal giving them an inadequate opportunity to be heard and to make submissions about the ledger provided by the Respondents' agent at the hearing. The ledger entries from 11 March 2021 to 25 May 2021 are numerous - approximately 12 entries. These entries commenced on 19th March and the last was on 25th May.
Had the Respondents complied with the Tribunal's direction, the Appellants would have had three days prior to the hearing to check the entries on the ledger. They may have queried (and would have had an opportunity to challenge) the incorrect reversal on 26th April.
We have been provided with a transcript of the hearing. It reveals that Mrs O'Kane asked questions about the ledger (see page 34 and following) but does not appear to have noticed the reversal on 26th April. Nor did Ms Smith (the landlords' agent) say that the payment made on 9th April had been reversed by the entry made on the 26th April. It appears she may have started to do so but was cut off and did not complete her sentence (see p 34 lines 34 and 35).
Ignoring the effect of the new evidence that the Appellants seek leave to rely upon in this appeal (which we will refer to later in these reasons), the state of affairs as at the hearing was that the Appellants were paid to 28th May (the Respondents' position) and not to 19th May as found by the Tribunal. On the other hand, the Appellants say they were paid to 3rd June. We do not understand the Respondents' contention because the ledger considered at the hearing showed that the Appellants had paid to 19th May. Adding the two lots of $550 payments the rent would have been paid for an extra 14 days. Counting from (and including) 19th May they were paid to 2nd June (inclusive). The residential tenancy agreement required them to have paid to 3rd June (inclusive). They were one day behind or, to put it another way, they had paid six days in advance instead of the requisite seven days in advance.
Generally the Tribunal's acceptance of the tender of an up to date ledger at a hearing of this kind would not be a matter conducive to a finding of procedural unfairness. Indeed it would be necessary to have evidence of the alleged arrears as at the date of the hearing in order for an order for termination to be made as well as an order for the amount of arrears to be paid. In this case the question arises whether there was "practical injustice" by reason of the Tribunal giving the Appellants an inadequate opportunity to respond to late tender of the ledger in circumstances where it incorrectly showed that rent was paid to 19th May (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at 14 [37]).
When considering whether to make a termination order the Tribunal is governed by s 87 of the RT Act. Section 87(4) provides that the Tribunal may make a termination order if it is satisfied that the tenant has breached the residential tenancy agreement and that the breach is, in the circumstances of the case, sufficient to justify termination. Section 87(5) provides that, in considering the circumstances of the case, the Tribunal may consider the following: the nature of the breach, any previous breaches, any steps taken by the tenant to remedy the breach, any steps taken by the landlord about the breach and the previous history of the tenancy.
Here, the Tribunal proceeded upon the basis that there had been many occasions in the past where the Appellants had been in breach of their obligations to pay weekly rent at least one week in advance. We are of the opinion that, on the evidence before the Tribunal, that finding was available to the Tribunal.
We are also of the opinion that the finding that the Appellants continued to be in breach [27] was available on the evidence. The Appellants submitted that the tenancy agreement did not state the period in which the Appellants were required to be in advance. We reject that submission. The agreement required the Appellants to pay rent weekly in advance. That clearly means that the tenants were to pay rent in amounts and at intervals that would have the consequence that they were always paid to the date which is at least 7 days into the future. As at the hearing the Appellants needed to have paid rent to and including the 3rd June. In short, because the Tribunal had been given an incorrect ledger and because it appears to have overlooked the payment made on the morning of the hearing, the finding that the Appellants continued to be in breach was in error as to the extent of the breach but there was still a breach.
In the circumstances described above, the question arises whether the Appellants suffered procedural unfairness.
The first issue is whether the Tribunal denied the Appellants a reasonable opportunity to be heard in respect of the ledger tendered at the hearing and the representations contained within it about their payment of rent since 11 March 2021. They had had an opportunity to provide their own evidence to the Tribunal about the payment of rent and had chosen not to do so. They were directed to file that evidence by 8 April 2021.
The Tribunal also gave Ms O'Kane an opportunity at the hearing to make submissions about the ledger and Ms O'Kane did so extensively. She identified, for example, that there was a discrepancy of around 13 days in what the ledger showed about the payment of rent and the true position (p 38, lines 23-25 of Appellants' Documents). Having heard from Ms O'Kane, the Tribunal member said to her: "Look, I think I understand what you're saying. You're saying that if you add up all of those amounts and you work out how many days it should cover, on your calculations you think it takes you to 3 June." MS O'KANE: Yes."
Ms O'Kane then identified that that did not take into account the "missing payment" (that is, the payment made on the day of the hearing). The following exchange then occurred: "TRIBUNAL MEMBER: So, you're saying if you add the missing payment in as well, it takes you another week forward? MS O'KANE: Yes. Yes."
It is true that Ms O'Kane did not identify, in the time afforded to her, the error in the ledger on 26 April 2021. However, the Tribunal gave her a significant amount of time to make submissions about the ledger, of which she availed herself, and she did not ask for an adjournment.
A failure to offer an adjournment to a self-represented party may, in some circumstances, constitute a failure to comply with the rules of procedural fairness or a failure to comply with the obligation, under s 38(5)(c) of the NCAT Act, to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard: Italiano v Carbone [2005] NSWCA 177 at [105]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]. In the circumstances of this case, however, we do not consider that the Tribunal was obliged to offer Ms O'Kane an adjournment. The Appellants had been provided with an opportunity to file evidence relating to their payment of rent; Ms O'Kane made detailed oral submissions about the ledger at the hearing; and Ms O'Kane did not indicate that she needed more time to consider the ledger. In these circumstances, we consider that the Tribunal afforded the Appellants a reasonable opportunity to be heard (and that it did not deny them procedural fairness).
There is another reason why we do not consider that the Tribunal denied the Appellants procedural fairness. That is because the failure to offer the Appellants an adjournment did not cause them any practical injustice (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at 13-14 [37]-[38]). The Tribunal had ordered the Respondents to file a rent ledger three days prior to the hearing. There was no direction allowing the Appellants to file evidence in reply. It is not suggested that, if the Respondents had complied with this direction, there would have been procedural unfairness.
Had the Appellants had more time to consider the ledger, they may have identified an error in the ledger on 26 April 2021 (when a rental payment was incorrectly reversed). The Appellants may then have chosen to make submissions about this to the Tribunal. However, without having been given that adjournment, Ms O'Kane made submissions that they were paid up to 3 June 2021 and that they had made a payment which was not reflected on the ledger. The Appellants had been on notice since the Respondents applied to the Tribunal that the Respondents contended that they had frequently failed to pay rent, and had been given an opportunity to provide evidence about that. In circumstances where the evidence otherwise established that they had been in arrears in the past (and Ms O'Kane expressly acknowledged this at the hearing), the Appellants have not persuaded us that the lack of an adjournment caused them any practical injustice.
If there was any breach of procedural fairness, contrary to our view, we are not persuaded that there is a realistic possibility that it would have made a difference to the Tribunal's decision.
In a number of recent cases the High Court has considered the requirement for materiality in the context of a breach of the obligation to provide procedural fairness amounting to jurisdictional error: See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17. The plurality in each case has held that there is ordinarily a requirement for the breach of procedural fairness to be material in the sense that it involved a realistic possibility that the decision in fact made could have been different had the breach not occurred (MZAPC [2]).
In Hossain, Edelman J referred to both jurisdictional error and non-jurisdictional error and said that for both types of errors "materiality is a common restriction" [65]. In MZAPC, the plurality looked to cases involving an alleged denial of procedural fairness not involving jurisdictional error and said at [46], "procedural fairness is a matter of practical injustice, so that a demonstration of a bare or merely technical denial of procedural fairness is not sufficient to establish entitlement to a new trial".
The Appellants must satisfy us that, had the Tribunal given them a reasonable opportunity to be heard in respect of the up to date ledger (assuming, contrary to our view, that it did not), there was a realistic possibility that the Tribunal would not have terminated the tenancy. We are not so satisfied. There was evidence before the Tribunal of many instances of prior breaches by the Appellants from the time of the issue of the Notice of Termination and in the year or so beforehand. It was also open to have found a continuing breach if the Tribunal had calculated rent to have been paid to 2nd June. The Tribunal's failure to take into account the rent paid on the day of the hearing (which was not reflected in the ledger), whilst unfortunate, was not referable to any breach of procedural fairness relating to the ledger. The Tribunal's finding that the Appellants frequently failed to pay rent was not dependent upon the Appellants' payment of rent in the month prior to the hearing.
For these reasons, Ground 1 is dismissed.

Ground 2 - Errors in factual findings about payment of rent

Ground 2 relies, in part, upon the fresh evidence that the Appellants seek leave to rely upon in the appeal. The Appellants were given an adequate opportunity to file evidence before the hearing at first instance but did not do so. In the appeal the Appellants do not appear to have sought leave to rely upon fresh evidence but have filed a statement of Mrs O'Kane and copies of bank statements intended to demonstrate that rent payments were made but not accounted for in the ledger.
We are of the opinion that this fresh evidence should not be allowed in support of the appeal. Mrs O'Kane's statement refers to significant financial and mental health issues she and her husband have been experiencing. The evidence in that regard is not supported by the evidence of a medical practitioner, nor is there explanation as to why the evidence was able to be prepared in support of the appeal but not to defend the first instance application. At first instance there was adequate time to file and serve evidence. Although the direction made on 29th March gave only 9 days to file and serve the Appellants' evidence, there was a further period about 7 weeks in which evidence could have been filed before the hearing.
For the above reasons, we refuse leave to permit the fresh evidence to be relied upon.
The Appellants also contend that the Decision was legally unreasonable insofar as the Tribunal found that rent arrears were owed in an amount of $450. The transcript demonstrates that both parties accepted that the Appellants had made a payment of $550 on the day of the hearing and the Tribunal member also accepted this at the hearing. It appears that the Tribunal overlooked this payment when making its factual finding that the Appellants were $450 in arrears. This was plainly a factual error.
The making of a factual error is not to be equated with legal unreasonableness. It remains the law that a factual finding which is perverse or contrary to the overwhelming weight of the evidence is not an error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156). Although the Tribunal was incorrect to find that the Appellants were in arrears at the time of the hearing, it did not make any factual error in finding that they had frequently failed to pay rent, or that they had not complied with their obligation to pay rent (which required them to have paid rent 7 days in advance). As there was a clear error in the Tribunal's finding that the arrears were $450 it is appropriate to grant leave to the Appellants to appeal order 7 (which required them to pay that sum).
We are of the opinion that there was sufficient evidence before the Tribunal upon which to make the findings of breach by the Appellants. Accordingly, Ground 2 is rejected except to the extent of setting aside order 7.

Ground 3 - No evidence

Ground 3 concerns the submission that the finding that the landlords (the Respondents) have financial obligations which can only be met if rental payments are made in accordance with the tenancy agreement was a finding made without evidence. There is no requirement for documentary evidence to support an assertion of the kind made by or on behalf of the Respondents. To some extent, it is self-evident that the Respondents would have financial obligations. We are informed that the evidence concerning the Respondents' financial obligations came from their agent. As the Tribunal is not bound by the rules of evidence, it was entitled to take into account, as factual material before it, submissions as to fact made by the Respondents' agent (see Neumann v Hutton [2020] QSC 17 at [30]). In the absence of contrary evidence or evidence throwing into doubt the fact of the agency, it was open to the Tribunal to accept that as evidence.
Even if the Appellants are right to characterise the Tribunal's finding as one made without evidence, the finding of fact was not a critical or crucial fact (see, for example, AAI Ltd trading as GIO v McGiffen [2016] NSWCA 229). The critical issue was whether the Appellants had frequently failed to pay rent. The finding about the landlords' financial obligations was not critical to the Tribunal's decision to terminate the tenancy.
For these reasons, Ground 3 is dismissed.

Ground 4 - decision not just and equitable

Ground 4 concerns the submission that leave to appeal ought to granted because the decision was not just and equitable. This ground is in part dependent on the success of the submission that there was a denial of procedural fairness and/or a failure to consider the true state of the Appellants' arrears. We have already rejected the fresh evidence sought to be relied upon and have determined that there was no procedural unfairness or, if there was, that it was not relevantly material when considered against other evidence of prior and continuing arrears. It follows that we do not consider that the decision was not just and equitable. This ground is rejected.

Conclusion

The appeal must therefore be dismissed except to the extent of setting the order for payment of $450 that the Respondents concede was in error.
The Appeal Panel makes the following orders: 1. Appeal dismissed except to the extent of the order that follows: 2. Order 7 made on 27th May 2021 in RT21/05885 is set aside and the Respondents are given leave to claim arrears of rent in conjunction with making a claim under order 6. 3. The order staying the operation of the possession order is lifted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2021

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